EX-10.2






Exhibit 10.2




 

 






SECOND AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT




among




GOLDLEAF FINANCIAL SOLUTIONS, INC.


f/k/a Private Business, Inc.




and




LIGHTYEAR PBI HOLDINGS, LLC




dated as of June 27, 2008




 

 






 









 












Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	2	 
	SECTION 1.1. Certain Defined Terms
	 	 	2	 
	SECTION 1.2. Other Definitional Provisions
	 	 	5	 
	 
	 	 	 	 
	ARTICLE II INTENTIONALLY DELETED
	 	 	6	 
	 
	 	 	 	 
	ARTICLE III TRANSFERS
	 	 	6	 
	SECTION 3.1. Lightyear Transferees
	 	 	6	 
	SECTION 3.2. Transfer Restrictions
	 	 	6	 
	SECTION 3.3. Legends
	 	 	6	 
	 
	 	 	 	 
	ARTICLE IV REGISTRATION RIGHTS
	 	 	7	 
	SECTION 4.1. Incidental Registrations
	 	 	7	 
	SECTION 4.2. Registration on Request
	 	 	8	 
	SECTION 4.3. Registration Procedures
	 	 	11	 
	SECTION 4.4. Information Supplied
	 	 	15	 
	SECTION 4.5. Restrictions on Disposition
	 	 	15	 
	SECTION 4.6. Indemnification
	 	 	15	 
	SECTION 4.7. Required Reports
	 	 	18	 
	SECTION 4.8. Selection of Counsel
	 	 	18	 
	SECTION 4.9. Holdback Agreement
	 	 	18	 
	SECTION 4.10. No Inconsistent Agreements
	 	 	18	 
	 
	 	 	 	 
	ARTICLE V INTENTIONALLY DELETED
	 	 	18	 
	 
	 	 	 	 
	ARTICLE VI INTENTIONALLY DELETED
	 	 	18	 
	 
	 	 	 	 
	ARTICLE VII MISCELLANEOUS
	 	 	18	 
	SECTION 7.1. Intentionally Deleted
	 	 	18	 
	SECTION 7.2. Termination
	 	 	18	 
	SECTION 7.3. Amendments and Waivers
	 	 	19	 
	SECTION 7.4. Successors, Assigns and Transferees
	 	 	19	 
	SECTION 7.5. Notices
	 	 	19	 
	SECTION 7.6. Further Assurances
	 	 	20	 
	SECTION 7.7. Entire Agreement
	 	 	20	 
	SECTION 7.8. Delays or Omissions
	 	 	21	 
	SECTION 7.9. Governing Law; Jurisdiction; Waiver of Jury Trial
	 	 	21	 
	SECTION 7.10. Severability
	 	 	21	 
	SECTION 7.11. Effective Date
	 	 	21	 
	SECTION 7.12. Enforcement
	 	 	21	 






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	 	 	Page	 
	SECTION 7.13. Titles and Subtitles
	 	 	22	 
	SECTION 7.14. No Recourse
	 	 	22	 
	SECTION 7.15. Counterparts; Facsimile Signatures
	 	 	22	 






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GOLDLEAF FINANCIAL SOLUTIONS, INC.


f/k/a Private Business, Inc.




SECOND AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT




     THIS SECOND AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT (this “Agreement”) is
entered into as of June 27, 2008, among GOLDLEAF FINANCIAL SOLUTIONS, INC., f/k/a Private Business,
Inc., a Tennessee corporation (the “Company”) and LIGHTYEAR PBI HOLDINGS, LLC, a Delaware
limited liability company (“Lightyear”).



RECITALS




     WHEREAS, the Company and Lightyear entered into a Securityholders Agreement dated January 20,
2004 (the “Original Securityholders Agreement”);



     WHEREAS, in connection with the Company’s 2006 underwritten offering of its common stock, the
Company redeemed certain equity securities held by Lightyear and recapitalized certain other equity
securities held by Lightyear, pursuant to the terms of that certain Redemption and Recapitalization
Agreement, dated April 25, 2006 between the Company and Lightyear (as amended, the
“Recapitalization Agreement”);



     WHEREAS, pursuant to the terms of the Recapitalization Agreement, the Company and Lightyear
amended and restated the Original Securityholders Agreement (the “Amended and Restated
Securityholders Agreement”);



     WHEREAS, pursuant to the Recapitalization Agreement, the Company granted Lightyear the right
to designate one director on the Company board of directors;



     WHEREAS, Lightyear’s designated representative on the Company board of directors has resigned
and Lightyear has not designated a replacement director;



     WHEREAS, the Company and Lightyear have agreed to amend the Recapitalization Agreement in
order to terminate Lightyear’s director designation rights, and the Company and The Lightyear Fund,
L.P., a Delaware limited partnership that is a member of Lightyear (the “Fund”) have agreed
to terminate certain management rights of the Fund with respect to the Company, in each case
pursuant to the terms of that certain Termination and Amendment Agreement, dated as of the date
hereof among the Company, Lightyear and the Fund (the “Termination Agreement”); and



     WHEREAS, in connection with the foregoing, the parties desire to amend Lightyear’s
registration rights.



     NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises
hereinafter set forth, the parties hereto agree as follows:



 









 





ARTICLE I




DEFINITIONS




     SECTION 1.1. Certain Defined Terms. As used herein, the following terms shall have the following
meanings:



     “Adverse Effect” has the meaning assigned to such term in Section 4.2(g).



     “Affiliate” means, with respect to any Person, any other Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by or is under common
control with, such specified Person, for so long as such Person remains so associated to the
specified Person.



     “Agreement” has the meaning assigned to such term in the preamble.



     “Amended and Restated Securityholders Agreement” has the meaning assigned to such term
in the recitals.



     “beneficial owner” or “beneficially own” has the meaning given such term in
Rule 13d-3 under the Exchange Act and a Person’s beneficial ownership of Common Stock or Preferred
Stock or other Voting Securities of the Company shall be calculated in accordance with the
provisions of such Rule; provided, however, that for purposes of determining
beneficial ownership, (i) a Person shall be deemed to be the beneficial owner of any security which
may be acquired by such Person whether within 60 days or thereafter, upon the conversion, exchange
or exercise of any warrants, options, rights or other securities and (ii) no Person shall be deemed
to beneficially own any security solely as a result of such Person’s execution of this Agreement.



     “Board” means the Board of Directors of the Company.



     “Capital Stock” means, with respect to any Person at any time, any and all shares,
interests, participations or other equivalents (however designated, whether voting or non-voting)
of capital stock, partnership interests (whether general or limited) or equivalent ownership
interests in or issued by such Person, and with respect to the Company includes any and all shares
of Common Stock and Preferred Stock.



     “Claims” has the meaning assigned to such term in Section 4.6(a).



     “Closing” shall have the meaning assigned to such term in Section 1 of the
Recapitalization Agreement.



     “Common Stock” means the common stock, no par value, of the Company and any securities
issued in respect thereof, or in substitution therefor, in connection with any stock split,
dividend or combination, or any reclassification, recapitalization, merger, consolidation, exchange
or other similar reorganization.



     “Company” has the meaning assigned to such term in the preamble.



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     “control” (including the terms “controlled by” and “under common control
with”), with respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as trustee or executor,
by contract or otherwise.



     “Demand Party” has the meaning assigned to such term in Section 4.2(a).



     “Director” means any member of the Board.



     “Equity Securities” means any and all shares of Capital Stock of the Company,
securities of the Company convertible into, or exchangeable or exercisable for, such shares, and
options, warrants or other rights to acquire such shares.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



     “Holder” means Lightyear and any other Holder of Series A Warrant Recapitalization
Securities.



     “incur” means, directly or indirectly, to incur, refinance, create, assume, guarantee
or otherwise become liable with respect to.



     “Indemnified Parties” has the meaning assigned to such term in Section 4.6(a).



     “Law” has the meaning assigned to such term in the Securities Purchase Agreement.



     “Lightyear” has the meaning assigned to such term in the preamble.



     “NASD” means the National Association of Securities Dealers, Inc.



     “Nasdaq” means the Nasdaq Global Market and the Nasdaq Capital Market.



     “Other Holders” means Persons other than Holders who, by virtue of agreements with the
Company, are entitled to include their securities in certain registrations hereunder.



     “Other Securities” means securities of the Company, other than Registrable Securities
which, by virtue of agreements between Other Holders and the Company, are entitled to be included
in certain registrations hereunder.



     “Original Securityholders Agreement” has the meaning assigned to such term in the
recitals.



     “Permitted Transferee” means, with respect to Lightyear (A) Lightyear’s officers,
employees or consultants, (B) any corporation or corporations, partnership or partnerships (or
other entity for collective investment, such as a fund) which is (and continues to be) an Affiliate



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of Lightyear, (C) the partners of Lightyear and the general or limited partners of such
partners in the case of a distribution by Lightyear and (D) any other Person to whom Lightyear
transfers the Series A Warrant Recapitalization Securities.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, governmental authority or other entity.



     “Preferred Stock” means, collectively, the Series A Preferred Stock, the Series B
Preferred Stock, any other series of preferred stock of the Company and any securities issued in
respect thereof, or in substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger, consolidation, exchange or other
similar reorganization.



     “Recapitalization Agreement” has the meaning assigned to such term in the recitals.



     “Registrable Securities” means Series A Warrant Recapitalization Securities. As to
any particular Registrable Securities, once issued, such Registrable Securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the sale by the Holder of
such securities shall have become effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement, (b) such securities shall have
been distributed to the public pursuant to Rule 144 (or any successor provision) under the
Securities Act, or (c) such securities shall have ceased to be outstanding.



     “Registration Expenses” means any and all expenses incident to performance of or
compliance with Article IV of this Agreement, including (a) all SEC and securities exchange or NASD
registration and filing fees (including, if applicable, the fees and expenses of any “qualified
independent underwriter,” as such term is defined in Schedule E to the bylaws of the NASD, and of
its counsel), (b) all fees and expenses of complying with securities or blue sky laws (including
fees and disbursements of counsel for the underwriters in connection with blue sky qualifications
of the Registrable Securities), (c) all printing, messenger and delivery expenses, (d) all fees and
expenses incurred in connection with the listing of the Registrable Securities on any securities
exchange or the Nasdaq Stock Market pursuant to Section 4.3(h)(i) and all rating agency fees, (e)
the fees and disbursements of counsel for the Company and of its independent public accountants,
including the expenses of any special audits and/or “cold comfort” letters required by or incident
to such performance and compliance, (f) the reasonable fees and disbursements of counsel selected
pursuant to Section 4.8, (g) any fees and disbursements of underwriters customarily paid by the
issuers or sellers of securities, including liability insurance if the Company so desires or if the
underwriters so require, and the reasonable fees and expenses of any special experts retained by
the Company in connection with the requested registration, but excluding underwriting discounts and
commissions (or the equivalent thereof) and transfer taxes, if any, and (h) expenses incurred in
connection with any road show (including the reasonable out-of-pocket expenses of Lightyear).



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     “SEC” means the U.S. Securities and Exchange Commission or any other federal agency
then administering the Securities Act or the Exchange Act and other federal securities laws.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



     “Series A Warrant Recapitalization Securities” means the shares of Common Stock
(including any securities issued in respect thereof, or in substitution therefor, in connection
with any stock split, dividend or combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization) issued to Lightyear pursuant to the
Recapitalization Agreement.



     “Subsidiary” means (i) any corporation of which a majority of the securities entitled
to vote generally in the election of directors thereof, at the time as of which any determination
is being made, are owned by another entity, either directly or indirectly, and (ii) any joint
venture, general or limited partnership, limited liability company or other legal entity in which
an entity is the record or beneficial owner, directly or indirectly, of a majority of the voting
interests or the general partner.



     “Termination Agreement” has the meaning assigned to such term in the recitals.



     “Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber,
hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any
contract, option or other arrangement or understanding with respect to the sale, transfer,
assignment, pledge, encumbrance, hypothecation or similar disposition of, any shares of Equity
Securities beneficially owned by a Person or any interest in any shares of Equity Securities
beneficially owned by a Person.



     “Transferee” means any Person to whom Lightyear or any of its Affiliates or any
Transferee thereof Transfers Equity Securities of the Company, including Permitted Transferees, in
accordance with the terms hereof.



     “Voting Securities” means, at any time, shares of any class of Equity Securities of
the Company which are then entitled to vote in the election of Directors.



     SECTION 1.2. Other Definitional Provisions. (a) The words “hereof”, “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Article and Section
references are to this Agreement unless otherwise specified.



     (b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



     (c) Whenever the words “include”, “including” or “includes” appear in this Agreement, they
shall be read to be followed by the words “without limitation” or words having similar import.



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ARTICLE II




INTENTIONALLY DELETED




ARTICLE III




TRANSFERS




     SECTION 3.1. Lightyear Transferees.



     (a) Subject to Section 3.1(b), no Transferee of Lightyear shall be obligated, or entitled to
rights, under this Agreement.



     (b) No Transferee shall have any rights or obligations under this Agreement, except to the
extent that Lightyear shall expressly assign all or a portion of its rights and obligations
hereunder to such Transferee (and such rights shall be further transferable to any further
Transferee subject to this Section 3.1(b)).



     (c) Prior to the consummation of a Transfer from Lightyear, to the extent rights and
obligations are to be assigned, and as a condition thereto, the applicable Transferee shall (i)
agree in writing with the other parties hereto to be bound by the terms and conditions of this
Agreement to the extent described in Section 3.1(b) and (ii) provide the Company and the other
parties to this Agreement at such time complete information for notices under this Agreement.



     SECTION 3.2. Transfer Restrictions. (a) Lightyear shall not Transfer any shares of Series A
Warrant Recapitalization Securities if such transfer would violate the terms and conditions of this
Agreement, as applicable. Any attempt to transfer any shares of Series A Warrant Recapitalization
Securities in violation of the preceding sentence shall be null and void.



     (b) Notwithstanding anything to the contrary in this Agreement, any transfer permitted or
required by this Agreement shall be in compliance with federal and state securities laws, including
the Securities Act.



     (c) Lightyear may Transfer any or all of its shares of Series A Warrant Recapitalization
Securities, and assign its rights hereunder, to any Permitted Transferee of Lightyear. As a
condition precedent to any such transfer, the Permitted Transferee shall execute an instrument
pursuant to which such Permitted Transferee agrees to be bound by and to comply with the terms of
this Agreement, and obtains the rights and benefits that inure to, the transferor as though the
Permitted Transferee were such transferor. Upon execution of such instrument, the Permitted
Transferee shall be deemed a Holder hereunder. Any Transfer to a Permitted Transferee not made in
full compliance with this Section 3.2(c) shall be void and of no effect.



     SECTION 3.3. Legends. Each certificate representing shares of Series A Warrant Recapitalization
Securities will bear a legend on the face thereof substantially to the



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following effect (with such additions thereto or changes therein as the Company may be advised
by counsel are required by law or necessary to give full effect to this Agreement, the “Stock
Legend”):




     “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”) OR STATE SECURITIES LAWS AND CANNOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION OR THE AVAILABILITY OF
AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND REGULATIONS PROMULGATED THEREUNDER
AND APPLICABLE STATE SECURITIES LAWS.”


The Stock Legend will be removed by the Company by the delivery of substitute certificates without
such Legend upon receipt of a legal opinion from counsel reasonably satisfactory to the Company to
the effect that the legend is no longer required for purposes of applicable securities laws.



ARTICLE IV




REGISTRATION RIGHTS




     SECTION 4.1. Incidental Registrations. (a) If the Company at any time after the date hereof
proposes to register Equity Securities under the Securities Act (other than a registration on Form
S-4 or S-8, or any successor or other forms promulgated for similar purposes), whether or not for
sale for its own account, in a manner which would permit registration of Registrable Securities for
sale to the public under the Securities Act, it will, at each such time, give prompt written notice
to all Holders of its intention to do so and of such Holders’ rights under this Article IV. Upon
the written request of any such Holder made within 15 days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed of by such Holder),
the Company will use its reasonable best efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested to register by the
Holders thereof; provided, that (i) if, at any time after giving written notice of its
intention to register any securities, the Company shall determine for any reason not to proceed
with the proposed registration of the securities to be sold by it, the Company may, at its
election, give written notice of such determination to each Holder and, thereupon, shall be
relieved of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in connection
therewith), and (ii) if such registration involves an underwritten offering, all Holders requesting
to be included in the Company’s registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply to the Company, with
such differences, including any with respect to indemnification and liability insurance, as may be
customary or appropriate in combined primary and secondary offerings. If a registration requested
pursuant to this Section involves an underwritten public offering, any Holder requesting to be
included in such registration may elect, in writing prior to the effective date of the registration
statement filed in connection with such registration, not to register all or



-7-









 




any part of such securities in connection with such registration. The registrations provided
for in this Section 4.1 are in addition to, and not in lieu of, registrations made upon the request
of Lightyear in accordance with Section 4.2.



     (b) Expenses. The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 4.1.



     (c) Priority in Incidental Registrations. If a registration pursuant to this Section
4.1 involves an underwritten offering and the managing underwriter advises the Company in writing
that, in its opinion, the number of Registrable Securities requested to be included in such
registration would be likely to have an adverse effect on the price, timing or distribution of the
securities to be offered in such offering as contemplated by the Company (other than the
Registrable Securities), then the Company shall include in such registration (a) first,
100% of the securities the Company proposes to sell, (b) second, any Other Securities
requested to be registered by any Other Holders exercising a demand registration right, and (c)
third, to the extent of the amount of Registrable Securities and Other Securities requested
to be included in such registration which, in the opinion of such managing underwriter, can be sold
without having the adverse effect referred to above, the amount of Registrable Securities and Other
Securities which the Holders and the Other Holders have requested to be included in such
registration, such amount to be allocated pro rata among all requesting Holders and the Other
Holders on the basis of the relative amount of Registrable Securities and Other Securities
requested to be included in such registration by each such Holder and Other Holder.



     SECTION 4.2. Registration on Request. (a) Upon the written request of Holders of Registrable
Securities representing at least 10% of the outstanding Common Stock immediately following the
Closing and the issuance of the Series A Warrant Recapitalization Securities (provided that no
Permitted Transferee of Lightyear or its Affiliates or of any Permitted Transferee shall be
permitted to request a registration pursuant to this Section 4.2 unless the right to make such a
request was transferred to such Permitted Transferee pursuant to Section 3.2(c)) (the “Demand
Party”) requesting that the Company effect the registration under the Securities Act of all or
part of such Demand Party’s Registrable Securities (provided that (i) the reasonably anticipated
aggregate price to the public of such Registrable Securities shall be at least $8 million or (ii)
the number of Registrable Securities sought to be registered shall be equal to at least 10% of the
outstanding Common Stock of the Company immediately following the Closing and the issuance of the
Series A Warrant Recapitalization Securities) and specifying the amount and intended method of
disposition thereof, including pursuant to a shelf registration statement utilizing Rule 415 under
the Securities Act, the Company will promptly give written notice of such requested registration to
all other Holders, and thereupon will, as expeditiously as possible, use its reasonable best
efforts to effect the registration under the Securities Act of:




     (i) the Registrable Securities which the Company has been so requested to
register by the Demand Party; and




     (ii) all other Registrable Securities which the Company has been requested to
register by any other Holder thereof by written request given to the Company within
15 days after the giving of such written notice by the Company



-8-









 





(which request shall specify the amount and intended method of disposition of
such Registrable Securities), all to the extent necessary to permit the disposition
(in accordance with the intended method thereof as aforesaid) of the Registrable
Securities so to be registered; provided, that in no event shall the Company
be required to effect more than one registration pursuant to this Section 4.2; and
provided, further, that the Company shall not be obligated to file a
registration statement relating to any registration request under this Section 4.2
within a period of 180 days after the effective date of any registration effected
under Section 4.1, which was not effected on Form S-3 (or any successor or similar
short-form registration statement); and provided, further, that no Holder of
Registrable Securities shall be permitted to request a registration pursuant to this
Section 4.2 within a period of four months after June 27, 2008.



     (b) Top-Up Shares. In any registration pursuant to Section 4.2(a) in which the
aggregate price to the public of all Registrable Securities included therein is not reasonably
expected to exceed $25 million, the Company shall add to such registration that number of shares of
Registrable Securities as would have an aggregate value, at the reasonably anticipated price per
share, such that the reasonably anticipated aggregate price to the public of all Registrable
Securities included therein shall equal $25 million (the “Top-Up Shares”) and shall cause
such Top-Up Shares to be offered by the Company in such registration together with the Registrable
Securities offered by Lightyear and any other Holders therein; provided, however,
that the number of Top-Up Shares shall be reduced on a share for share basis by up to 50% to the
extent other Holders or Other Holders exercise incidental registration rights in connection with
such registration.



     (c) Registration Statement Form. The Company shall select the registration statement
form for any registration pursuant to this Section 4.2; provided, that if any registration
requested pursuant to this Section 4.2 which is proposed by the Company to be effected by the
filing of a registration statement on Form S-3 (or any successor or similar short-form registration
statement) shall be in connection with an underwritten public offering, and if the managing
underwriter shall advise the Company in writing that, in its opinion, the use of another form of
registration statement is of material importance to the success of such proposed offering, then
such registration shall be effected on such other form.



     (d) Expenses. The Company will pay all Registration Expenses in connection with
registrations of each class or series of Registrable Securities pursuant to this Section 4.2.



     (e) Effective Registration Statement. A registration requested pursuant to this
Section 4.2 will not be deemed to have been effected unless it has become effective and all of the
Registrable Securities registered thereunder have been sold or, in the case of a shelf registration
statement, can be sold thereunder for the period requested pursuant to Section 4.3(b).



     (f) Selection of Underwriters. If a requested registration pursuant to this Section
4.2 involves an underwritten offering, the investment banker(s), underwriter(s) and manager(s) for
such registration shall be selected by the Holders of a majority of the Registrable Securities
which the Company has been requested to register; provided, however, that such



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investment banker(s), underwriter(s) and manager(s) shall be reasonably satisfactory to the
Company.



     (g) Priority in Requested Registrations. If a requested registration pursuant to this
Section 4.2 involves an underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities to be included in such registration
(including securities of the Company which are not Registrable Securities) would be likely to have
an adverse effect on the price, timing or distribution of the securities to be offered in such
offering as contemplated by the Holders (an “Adverse Effect”), then the Company shall
include in such registration (a) first, 100% of the Registrable Securities requested to be
included in such registration by the Demand Party and all other Holders of Registrable Securities
pursuant to this Section 4.2 (to the extent that the managing underwriter believes that all such
Registrable Securities can be sold in such offering without having an Adverse Effect;
provided, that if the managing underwriter does not so believe and the Demand Party does
not exercise its right set forth in the second succeeding sentence of this clause (g), such lesser
number of Registrable Securities as specified by the Demand Party) and (b) second, to the
extent the managing underwriter believes additional securities can be sold in the offering without
having an Adverse Effect, the amount of Other Securities requested to be included by Other Holders
in such registration, allocated pro rata among all requesting Other Holders on the basis of the
relative amount of all Other Securities requested to be included in such registration. In the
event that the number of Registrable Securities and Other Securities to be included in such
registration is less than the number which, in the opinion of the managing underwriter, can be sold
without having an Adverse Effect, the Company may include in such registration the securities the
Company proposes to sell up to the number of securities that, in the opinion of such managing
underwriter, can be sold without having an Adverse Effect. If the managing underwriter of any
underwritten offering shall advise the Holders participating in a registration pursuant to this
Section 4.2 that the Registrable Securities covered by the registration statement cannot be sold in
such offering within a price range acceptable to the Demand Party, then the Demand Party shall have
the right to notify the Company that it has determined that the number of shares to be included in
such registration shall be reduced to a number that allows an offering in the price range or that
the registration statement be abandoned or withdrawn, in which event the Company shall effect the
reduction, or abandon or withdraw such registration statement; provided, however,
that if (i) Holders of Registrable Securities other than the Demand Party are participating in such
registration pursuant to Section 4.2(a) or (ii) the Company has included Top-Up Shares in such
registration pursuant to Section 4.2(b) and the Demand Party shall have exercised its right to
reduce the number of shares to be included or to abandon or withdraw such registration, such other
Holders or the Company, as the case may be, shall be permitted to proceed with such registration
and its offering of shares thereunder. Any registration attempted to be withdrawn by a Demand
Party pursuant to the preceding sentence shall not be counted as the Demand Party’s registration
demand provided in Section 4.2(a)(ii) and the Company shall pay all Registration Expenses in
connection therewith.



     (h) Postponements in Requested Registrations. Notwithstanding any other provision
contained herein, (i) if the Board determines, in its good faith judgment, that the registration
and offering otherwise required by this Section 4.2 would have an adverse effect on a



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then contemplated public offering of the Company’s Equity Securities, the Company may postpone
the filing (but not the preparation) of a registration statement required by this Section 4.2,
during the period starting with the 30th day immediately preceding the date of the
anticipated filing of, and ending on a date 60 days following the effective date of, the
registration statement relating to such other public offering and (ii) if the Company shall at any
time furnish to the Holders a certificate signed by its chairman of the board, chief executive
officer or president or any other of its authorized officers stating that the Company or any
Subsidiary of the Company has pending or in process a material transaction, the disclosure of which
would, in the good faith judgment of the Board, after consultation with its outside securities
counsel, materially and adversely affect the Company or such Subsidiary, the Company may postpone
the filing (but not the preparation) of a registration statement required by this Section 4.2 for
up to 90 days; provided, that, the Company shall at all times in good faith use its
reasonable best efforts to cause any registration statement required by this Section 4.2 to be
filed as soon as possible thereafter and; provided, further, that, the Company
shall not be permitted to postpone registration pursuant to this Section 4.2(h) more than twice in
any 360-day period; provided, however, that there shall be a minimum of 90 days
between the end of one such postponement and the start of the next such postponement. The Company
shall promptly give the Holders requesting registration thereof pursuant to this Section 4.2
written notice of any postponement made in accordance with the preceding sentence. If the Company
gives the Holders such a notice, the Holders shall have the right, within 15 days after receipt
thereof, to withdraw their request in which case, such request will not be counted for purposes of
this Section 4.2.



     (i) Additional Rights. If the Company at any time grants to any other holders of
Capital Stock any rights to request the Company to effect the registration under the Securities Act
of any such shares of Capital Stock on terms more favorable to such holders than the terms set
forth in this Article IV, the terms of this Article IV shall be deemed amended or supplemented to
the extent necessary to provide the Holders such more favorable rights and benefits. The Company
shall provide the Holders prior written notice of any such deemed amendment or supplement to the
terms of this Article IV.



     SECTION 4.3. Registration Procedures. If and whenever the Company is required to effect or use its
reasonable best efforts to effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will promptly:



     (a) prepare and, in any event within 45 days after the end of the period within which a
request for registration may be given to the Company, file with the SEC a registration statement
with respect to such Registrable Securities and use its reasonable best efforts to cause such
registration statement to become effective within 90 days of the initial filing;



     (b) prepare and file with the SEC such amendments and supplements to such registration
statement (including Exchange Act documents incorporated by reference into the registration
statement) and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period not in excess of 90 days (or such longer period not
to exceed three years as may be requested by the Holders in the event of a shelf registration
statement) and to comply with the provisions of the Securities Act and the Exchange



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Act with respect to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement; provided, that before filing a
registration statement or prospectus, or any amendments or supplements thereto in accordance with
Sections 4.3(a) or (b), the Company will furnish to counsel selected pursuant to Section 4.8 hereof
copies of all documents proposed to be filed, which documents will be subject to the review of such
counsel;



     (c) furnish to each seller of such Registrable Securities such number of copies of such
registration statement and of each amendment and supplement thereto (in each case including all
exhibits filed therewith, including any documents incorporated by reference), such number of copies
of the prospectus included in such registration statement (including each preliminary prospectus
and summary prospectus), in conformity with the requirements of the Securities Act, and such other
documents as such seller may reasonably request in order to facilitate the disposition of the
Registrable Securities by such seller;



     (d) use its reasonable best efforts to register or qualify such Registrable Securities covered
by such registration in such jurisdictions as each seller shall reasonably request, and do any and
all other acts and things which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities owned by such
seller, except that the Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction where, but for the requirements of this
subsection (d), it would not be obligated to be so qualified, to subject itself to taxation in any
such jurisdiction or to consent to general service of process in any such jurisdiction;



     (e) use its reasonable best efforts to cause such Registrable Securities covered by such
registration statement to be registered with or approved by such other governmental authorities as
may be necessary to enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;



     (f) notify each seller of any such Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the Company’s becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;



     (g) otherwise use its reasonable best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as reasonably
practicable (but not more than 18 months) after the effective date of the registration



-12-









 




statement, an earnings statement which shall satisfy the provisions of Section 11(a) of the
Securities Act;



     (h) (i) use its reasonable best efforts to list such Registrable Securities on any securities
exchange on which the Common Stock is then listed if such Registrable Securities are not already so
listed and if such listing is then permitted under the rules of such exchange; and (ii) use its
best efforts to provide a transfer agent and registrar for such Registrable Securities covered by
such registration statement not later than the effective date of such registration statement;



     (i) enter into such customary agreements (including an underwriting agreement in customary
form), which may include indemnification provisions in favor of underwriters and other Persons in
addition to, or in substitution for the provisions of Section 4.6 hereof, and take such other
actions as sellers of a majority of shares of such Registrable Securities or the underwriters, if
any, reasonably requested in order to expedite or facilitate the disposition of such Registrable
Securities;



     (j) in the case of an underwritten registration, obtain a “cold comfort” letter or letters
from the Company’s independent public accounts in customary form and covering matters of the type
customarily covered by “cold comfort” letters as the seller or sellers of a majority of shares of
such Registrable Securities shall reasonably request;



     (k) make available for inspection by any seller of such Registrable Securities covered by such
registration statement, by any underwriter participating in any disposition to be effected pursuant
to such registration statement and by any attorney, accountant or other agent retained by any such
underwriter and by counsel selected pursuant to Section 4.8 hereof, all pertinent financial and
other records, pertinent corporate documents and properties of the Company, and cause all of the
Company’s officers, directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such registration
statement;



     (l) notify counsel (selected pursuant to Section 4.8 hereof) for the Holders of Registrable
Securities included in such registration statement and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the registration statement, or any
post-effective amendment to the registration statement, shall have become effective, or any
supplement to the prospectus or any amendment to the prospectus shall have been filed, (ii) of the
receipt of any comments from the SEC, (iii) of any request of the SEC to amend the registration
statement or amend or supplement the prospectus or for additional information, and (iv) of the
issuance by the SEC of any stop order suspending the effectiveness of the registration statement or
of any order preventing or suspending the use of any preliminary prospectus, or of the suspension
of the qualification of the registration statement for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of such purposes;



     (m) make reasonable best efforts to prevent the issuance of any stop order suspending the
effectiveness of the registration statement or of any order preventing or



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suspending the use of any preliminary prospectus and, if any such order is issued, to obtain
the withdrawal of any such order as soon as practicable;



     (n) if requested by the managing underwriter or agent or any Holder of Registrable Securities
covered by the registration statement, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or agent or such Holder
reasonably requests to be included therein, including, with respect to the number of Registrable
Securities being sold by such Holder to such underwriter or agent, the purchase price being paid
therefor by such underwriter or agent and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering; and make all required filings
of such prospectus supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or post-effective amendment;



     (o) cooperate with the Holders of Registrable Securities covered by the registration statement
and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing securities to be sold under the
registration statement, and enable such securities to be in such denominations and registered in
such names as the managing underwriter or agent, if any, or such Holders may request;



     (p) obtain for delivery to the Holders of Registrable Securities being registered and to the
underwriter or agent an opinion or opinions from counsel for the Company in customary form and in
form, substance and scope reasonably satisfactory to such Holders, underwriters or agents and their
counsel;



     (q) cooperate with each seller of Registrable Securities and each underwriter or agent
participating in the disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;



     (r) use its reasonable best efforts to make available the executive officers of the Company to
participate with the Holders of Registrable Securities and any underwriters in any “road shows” or
other selling efforts that may be reasonably requested by the underwriters in connection with the
methods of distribution for the Registrable Securities; and



     (s) if at any time a shelf registration statement requested to be used by the Holders to
dispose of the Registrable Securities ceases to be effective before the end of the three year
effective period for shelf registration statements set forth in Section 4.3(b), the Company shall
use its reasonable best efforts to file and cause to become effective a new shelf registration
statement to remain effective for a three year period plus an additional period equal to the period
during which a registration statement was not effective.



     SECTION 4.4. Information Supplied. The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish the Company with customary information
regarding such seller and pertinent to the disclosure requirements relating to the registration and
the distribution of such securities as the Company may from time to time



-14-









 




reasonably request. Each seller of Registrable Securities shall provide such information as a
condition precedent to the Company’s obligations under Article IV hereof.



     SECTION 4.5. Restrictions on Disposition. Each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 4.3(f), such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder’s receipt of the copies of the supplemented
or amended prospectus contemplated by Section 4.3(f), and, if so directed by the Company, such
Holder will deliver to the Company (at the Company’s expense) all copies, other than permanent file
copies then in such Holder’s possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall give any such
notice, the period mentioned in Section 4.3(b) shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to Section 4.3(f) and to
and including the date when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended prospectus contemplated by
Section 4.3(f).



     SECTION 4.6. Indemnification. (a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to Section 4.1 or 4.2, the Company shall, and it hereby
does, indemnify and hold harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each Affiliate of such seller and their
respective directors, officers, members or general and limited partners (and any director, officer,
and controlling Person of any of the foregoing), each Person who participates as an underwriter in
the offering or sale of such securities and each other Person, if any, who controls such seller or
any such underwriter within the meaning of the Securities Act (collectively, the “Indemnified
Parties”), against any and all losses, claims, damages or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) in respect thereof (“Claims”) and
expenses (including reasonable attorney’s fees and reasonable expenses of investigation) to which
such Indemnified Party may become subject under the Securities Act, common law or otherwise,
insofar as such Claims or expenses arise out of, relate to or are based upon (a) any untrue
statement or alleged untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, or (b) any omission
or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in light of the circumstances under which
they were made) not misleading; provided, that the Company shall not be liable to any Indemnified
Party in any such case to the extent that any such Claim or expense arises out of, relates to or is
based upon any untrue statement or alleged untrue statement or omission or alleged omission made in
such registration statement or amendment or supplement thereto or in any such preliminary, final or
summary prospectus in reliance upon and in conformity with written information furnished to the
Company by or behalf of such seller specifically for use in the preparation thereof. Such
indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of any Indemnified Party and shall survive the transfer of securities by any seller.



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     (b) The Company may require, as a condition to including any Registrable Securities in any
registration statement filed in accordance with Section 4.2 or 4.3 herein, that the Company shall
have received an undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 4.6(a)) the Company and all other prospective sellers or
any underwriter, as the case may be, with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement thereto, if such
untrue statement or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by or on behalf of such
seller or underwriter specifically for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any of the prospective
sellers, or any of their respective Affiliates, directors, officers or controlling Persons and
shall survive the transfer of securities by any seller. In no event shall the liability of any
selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable Securities giving rise to
such indemnification obligation.



     (c) Promptly after receipt by an indemnified party hereunder of written notice of the
commencement of any action or proceeding with respect to which a claim for indemnification may be
made pursuant to this Section 4.6, such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party, give written notice to the latter of the commencement of
such action or proceeding; provided, that the failure of the indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its obligations under Section
4.6, except to the extent that the indemnifying party is materially prejudiced by such failure to
give notice. In case any such action or proceeding is brought against an indemnified party, unless
in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such action or proceeding (in which case the
indemnified party shall have the right to assume or continue its own defense and the indemnifying
party shall be liable for any reasonable expenses therefor, but in no event will bear the expenses
for more than one firm of counsel for all indemnified parties in each jurisdiction who shall be
approved in the event the Company is the indemnifying party by the majority of the participating
Holders in the registration in respect of which such indemnification is sought), the indemnifying
party will be entitled to participate in and to assume the defense thereof (at its expense),
jointly with any other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than reasonable costs of
investigation and shall have no liability for any settlement made by the indemnified party without
the consent of the indemnifying party, such consent not to be unreasonably withheld. No
indemnifying party will settle any action or proceeding or consent to the entry of any judgment
without the prior written consent of the indemnified party,



-16-









 




unless such settlement or judgment (i) includes as an unconditional term thereof the giving by
the claimant or plaintiff of a release to such indemnified party from all liability in respect of
such action or proceeding and (ii) does not involve the imposition of equitable remedies or the
imposition of any obligations on such indemnified party and does not otherwise adversely affect
such indemnified party, other than as a result of the imposition of financial obligations for which
such indemnified party will be indemnified hereunder.



     (d) (i) If the indemnification provided for in this Section 4.6 from the indemnifying party
is unavailable to an indemnified party hereunder in respect of any Claim or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such Claim or
expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions which resulted in such Claim or
expenses, as well as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such action. The
amount paid or payable by a party under this Section 4.6(d) as a result of the Claim and expenses
referred to above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any action or proceeding.




     (ii) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.6(d) were determined by pro rata allocation
or by any other method of allocation which does not take account of the equitable
considerations referred to in Section 4.6(d)(i). No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.



     (e) Indemnification similar to that specified in this Section 4.6 (with appropriate
modifications) shall be given by the Company and each seller of Registrable Securities with respect
to any required registration or other qualification of securities under any Law or with any
governmental authority other than as required by the Securities Act.



     (f) The obligations of the parties under this Section 4.6 shall be in addition to any
liability which any party may otherwise have to any other party.



     SECTION 4.7. Required Reports. The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act (or, if the Company is not required to
file such reports, it will, upon the request of any Holder, make publicly available such
information), and it will take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell shares of Registrable Securities
without registration under the Securities Act within the limitation of the exemptions provided by
(a) Rule 144 under the Securities Act, as such Rule may be



-17-









 




amended from time to time, or (b) any similar rule or regulation hereafter adopted by the SEC.
Upon the request of any Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.



     SECTION 4.8. Selection of Counsel. In connection with any registration of Registrable Securities
pursuant to Sections 4.1 and 4.2 hereof, the Holders of a majority of the Registrable Securities
covered by any such registration may select one counsel to represent all Holders of Registrable
Securities covered by such registration; provided, however, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in connection with such
registration, the remaining Holders shall be entitled to select one additional counsel to represent
all such remaining Holders.



     SECTION 4.9. Holdback Agreement. If any registration hereunder shall be in connection with an
underwritten public offering, each Holder agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any Equity Securities of the
Company (in each case, other than as part of such underwritten public offering), within 10 days
before, or subject to Section 4.2(h) in the case of a requested registration that has been
postponed pursuant to clause (i) thereof, 180 days (or such lesser period as the managing
underwriters may require or permit) after, the effective date of such registration (except as part
of such registration), and the Company hereby also agrees to use its reasonable best efforts to
have each other holder of 5% or more of Equity Securities of the Company purchased from the Company
(at any time other than in a public offering) to so agree.



     SECTION 4.10. No Inconsistent Agreements. The Company represents and warrants that it is not a
party to, will not enter into, or cause or permit any of its Subsidiaries to enter into, any
agreement which conflicts with or limits or prohibits the exercise of the rights granted to the
Holders of Registrable Securities in this Article IV.



ARTICLE V


INTENTIONALLY DELETED




ARTICLE VI




INTENTIONALLY DELETED




ARTICLE VII




MISCELLANEOUS




     SECTION 7.1. Intentionally Deleted



     SECTION 7.2. Termination. (a) Except as provided in Section 7.2(b): (i) the provisions of Article
IV of this Agreement (other than Section 4.6 thereof) shall terminate at such time as there shall
be no Registrable Securities outstanding; (ii) the obligations of the



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respective parties under Section 4.6 shall terminate in respect of any shelf registration
statement at the time the applicable statute of limitations expires and otherwise, at such time as
the corresponding indemnification obligations in the underwriting agreement in respect of any
demand registration expires; (iii) the provisions of Articles I, III, and VII of this Agreement
shall not terminate until this Agreement has terminated pursuant to clause (iv) below; and (iv)
this Agreement shall terminate in full upon the last to occur of the terminations set forth in
clauses (i) and (ii).



     (b) No termination of this Agreement shall by virtue of such termination relieve any party
from any liability existing at the time of such termination for the breach of any of the agreements
set forth in this Agreement.



     SECTION 7.3. Amendments and Waivers. Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement shall be effective against the Company or
any Holder unless such modification, amendment or waiver is approved in writing by the Company and
Lightyear. The failure of any party to enforce any of the provisions of this Agreement shall in no
way be construed as a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance with its terms.



     SECTION 7.4. Successors, Assigns and Transferees. This Agreement shall bind and inure to the
benefit of and be enforceable by the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned by any party hereto (except as described in the next
sentence) without the prior written consent of the other parties. Lightyear and its Affiliates may
assign their respective rights and obligations hereunder to any Affiliate or Affiliates thereof
and, subject to the provisions of Section 3.1 and 3.2, to any other third party or Permitted
Transferee.



     SECTION 7.5. Notices. All notices, demands, requests, or other communications which may be or are
required to be given, served, or sent by any party to any other party pursuant to this Agreement
shall be in writing and shall be hand delivered, sent by overnight courier or mailed by
first-class, registered or certified mail, return receipt requested, postage prepaid, addressed as
follows:



     If to the Company:



Goldleaf Financial Solutions, Inc.

350 Technology Blvd.

Norcross, Georgia, 30071

Attention: G. Lynn Boggs

Facsimile: (678) 966-0877




     with a copy (which shall not constitute notice) to:



Harwell Howard Hyne Gabbert & Manner, P.C.

315 Deaderick Street, Suite 1800




-19-









 





Nashville, TN 37238-1800

Attention: David Cox

Facsimile: (615) 251-1056




     If to Investor:



c/o The Lightyear Fund, L.P.

375 Park Avenue, 11th Floor

New York, New York 10152

Attention: Lori J. Forlano

Facsimile: (212) 328-0516




     with a copy (which shall not constitute notice) to:



Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Attention: Caroline B. Gottschalk

Facsimile: (212) 455-2502




     If to another Holder:



to the address of such Holder as shown in the stock record books

of the Company.




     Each party may designate by notice in writing a new address to which any notice, demand,
request or communication may thereafter be so given, served or sent. Each notice, demand, request,
or communication that shall be hand delivered, sent, mailed, faxed in the manner described above,
shall be deemed sufficiently given, served, sent, received or delivered for all purposes at such
time as it is delivered to the addressee (with the return receipt or the delivery receipt being
deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.



     SECTION 7.6. Further Assurances. At any time or from time to time after the date hereof, the
parties agree to cooperate with each other, and at the request of any other party, to execute and
deliver any further instruments or documents and to take all such further action as the other party
may reasonably request in order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties hereunder.



     SECTION 7.7. Entire Agreement. Except as otherwise expressly set forth herein, this Agreement, the
Recapitalization Agreement and the Termination Agreement embody the complete agreement and
understanding among the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or



-20-









 




representations by or among the parties, written or oral, that may have related to the subject
matter hereof in any way; further, this agreement amends and restates in its entirety the Amended
and Restated Securityholders Agreement.



     SECTION 7.8. Delays or Omissions. It is agreed that no delay or omission to exercise any right,
power or remedy accruing to any party, upon any breach, default or noncompliance by another party
under this Agreement, shall impair any such right, power or remedy, nor shall it be construed to be
a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any
similar breach, default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character on the part of any party hereto of any
breach, default or noncompliance under this Agreement or any waiver on such party’s part of any
provisions or conditions of this Agreement, must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this Agreement, by law,
or otherwise afforded to any party, shall be cumulative and not alternative.



     SECTION 7.9. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed
in all respects by the laws of the State of Tennessee. No suit, action or proceeding with respect
to this Agreement may be brought in any court or before any similar authority other than in a court
of competent jurisdiction in the State of Tennessee, and the parties hereto hereby submit to the
exclusive jurisdiction of such courts for the purpose of such suit, proceeding or judgment. The
parties hereto hereby irrevocably waives any right which they may have had to bring such an action
in any other court, domestic or foreign, or before any similar domestic or foreign authority. Each
of the parties hereto hereby irrevocably and unconditionally waives trial by jury in any legal
action or proceeding in relation to this Agreement and for any counterclaim therein.



     SECTION 7.10. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.



     SECTION 7.11. Effective Date. This Agreement shall become effective immediately upon the date set
forth in the first paragraph hereof.



     SECTION 7.12. Enforcement. Each party hereto acknowledges that money damages would not be an
adequate remedy in the event that any of the covenants or agreements in this Agreement are not
performed in accordance with its terms, and it is therefore agreed that in addition to and without
limiting any other remedy or right it may have, the non-breaching party will have the right to an
injunction, temporary restraining order or other equitable relief in any court of competent
jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof.



-21-









 





     SECTION 7.13. Titles and Subtitles. The titles of the sections and subsections of this Agreement
are for convenience of reference only and are not to be considered in construing this Agreement.



     SECTION 7.14. No Recourse. Notwithstanding anything that may be expressed or implied in this
Agreement, the Company and each Holder covenant, agree and acknowledge that no recourse under this
Agreement or any documents or instruments delivered in connection with this Agreement shall be had
against any current or future director, officer, employee, general or limited partner or member of
Lightyear or of any Affiliate or assignee thereof, whether by the enforcement of any assessment or
by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable
law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach
to, be imposed on or otherwise be incurred by any current or future officer, agent or employee of
Lightyear or any current or future member of Lightyear or any current or future director, officer,
employee, partner or member of Lightyear or of any Affiliate or assignee thereof, as such for any
obligation of Lightyear under this Agreement or any documents or instruments delivered in
connection with this Agreement for any claim based on, in respect of or by reason of such
obligations or their creation.



     SECTION 7.15. Counterparts; Facsimile Signatures. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which together shall constitute
one and the same instrument, binding upon the parties hereto. This Agreement may be executed by
facsimile signatures.



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     IN WITNESS WHEREOF, the parties hereto have executed this SECOND AMENDED AND RESTATED
SECURITYHOLDERS AGREEMENT as of the date set forth in the first paragraph hereof.



	 	 	 	 	 
	 	GOLDLEAF FINANCIAL SOLUTIONS, INC.

 	 
	 	By:  	/s/ G. Lynn Boggs
 	 
	 	 	Name:  	G. Lynn Boggs 	 
	 	 	Title:  	President, Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	LIGHTYEAR PBI HOLDINGS, LLC

 	 
	 	By:  	/s/ Timothy Kacani
 	 
	 	 	Name:  	Timothy Kacani 	 
	 	 	Title:  	Vice President 	 
	 




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